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Thursday, 28 October 2010
Page: 1029


Senator BILYK (12:22 PM) —I rise today to speak on a bill that is based at the heart of very contemporary Australian society—that is, the Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Bill 2010. The Gillard government takes crime seriously and will do anything possible to protect the Australian people from the effects of crime—and, unfortunately, Australia has its fair share of identity crime.

Our identity is something that begins when we are born and given a name and a birth certificate. Our identity grows over time as we acquire personal identification numbers, passwords and licence and passport numbers. Our identity may also include a change of name, either through marriage or even just by deed poll. Regardless of what our identity consists of, it is ours for life—or at least it should be.

However, in today’s world with technology continually developing, it has become much easier for people to steal an identity or to create a new but fake one from scratch. Technology has played a huge role in the way identity crime and identity fraud is perpetrated, although in itself identity fraud is not a new concept. It has been around forever; it is just becoming more prolific. And even the most cautious people are at risk because of the ever-increasing, ever-changing technology available.

We need to be extremely conscious of protecting our identity and making sure that we are sensible with our personal information and what we do with it. It is also vital that parents educate their children about protecting their identity. In today’s world, it is just as important to teach your children about internet safety as it is to warn them about stranger danger.

We need legislation that makes it a crime to use someone else’s personal information, especially in criminal activities. We need to impose harsh penalties for doing so, because it does not matter how careful we are with our personal information, there will always be someone who can access that information and use it for their own gains. This bill will help clarify some areas of law that have previously been open to interpretation.

We part with personal information every day. It might be signing up for a new insurance policy, using online banking or giving information to someone over the phone. There are those of us who might misplace our wallet with all those important cards inside. Most people are honest and will use information only for the purposes they are intended for; however, there are some people who will use information for illicit reasons. Then there are the people who get access to our personal information without us even knowing that they have it. The fact that people can access our personal information without our knowledge is frightening.

People can even put incorrect information on websites about other people, and some of these can be edited by just about anyone. Currently, anyone who has their personal details misused has the onus placed on them to re-establish their identity. This is usually an onerous task, taking up a lot of time and effort and it can be very complicated. The changes proposed will hopefully make it easier by removing some of the difficulties and therefore decreasing the time and cost involved. It will identify how people can get help in re-establishing their identity, particularly when other people have committed criminal acts, carried on business activities or taken out loans in their name.

This bill has been worded so that emerging technology will be covered without having to make further changes. The term ‘equipment’ is not defined in the bill. This is so as to avoid a fast-dating of the provision. As an undefined term, ‘equipment’ will be defined by a court according to its plain and ordinary meaning. Therefore, equipment used often to create false identification, such as photocopiers, scanners and computers, will all be included under the term.

The bill is making amendments to a number of different acts, which include the Crimes Act 1914, the Privacy Act 1988, the Criminal Code Act 1995, the Australian Federal Police Act 1979, the Judiciary Act 1903, the Director of Public Prosecutions Act 1983 and the Anti-Money Laundering and Counter-Terrorism Financing Act 2006. In general, these amendments are designed to provide consistency and to make the operation of federal agencies easier. These amendments are in response to a report on identity crime handed down by the Model Criminal Law Officers Committee of the Standing Committee of Attorneys-General.

Currently only Queensland and South Australia have offences specific to identity crime. In other jurisdictions certain offences are covered by a variety of laws such as fraud, forgery, credit card skimming and theft, but this leaves a significant gap that enables conduct involving using someone else’s identity to go unpunished by the law. This is a serious problem that needs to be rectified as soon as possible. This bill will achieve that.

The Criminal Code Act 1995 will have three new offences listed once this bill has passed. These offences will be covered in the new part 9.5 of the act. Section 372.1 states that it is an offence to deal with identification information with the intent of ‘pretending to be, or passing themselves off as, another person’ with the ‘purpose of committing or facilitating a Commonwealth indictable offence’. Where the proposed offence is made out, an absolute liability applies with a penalty of imprisonment for five years. Section 372.2 states that it is an offence to be in possession of identification information with the intention of committing or facilitating the commission of conduct that constitutes the dealing offence, and this attracts a penalty of three years imprisonment. Section 372.3 relates to the proposed offence of possessing equipment to make identification documents, making it an offence to be in possession of equipment to create identification documentation with the intention of committing or facilitating the commission of conduct that constitutes the dealing offence. The penalty for that offence is three years imprisonment.

With the extended geographical jurisdiction, it will be an offence for an Australian citizen or body corporate to steal an identity while overseas. They will not be able to argue that they have done nothing wrong because the country they are located in does not have the same law. They will be committing an offence under Australian law while in another jurisdiction. This change recognises the serious impact identity crime can have on a global scale.

Under section 372.5, where a judge, a magistrate or a trier of fact in prosecution is not satisfied beyond reasonable doubt that someone is guilty of the offence of dealing in identification information, it is still possible for the accused to be found guilty of the offence of possessing identification information. All that is necessary is that the defendant has been accorded procedural fairness. Section 372.6 states that it is not an offence to attempt to commit offences under sections 372.1, 372.2 and 372.3. The reason for this is that harm only occurs when identity information has actually been used. Possession of information is not a sufficient cause.

This bill will alter part III of the Crimes Act 1914, which covers administration of justice offences to create consistency with the Criminal Code. It corrects a drafting oversight and also increases the penalties for a number of offences such as conspiracy to pervert the course of justice offences, which are very serious offences. This is consistent with the Gillard government’s policy that anyone who obstructs, prevents, perverts or tries to defeat the legal process in an improper way should face the strongest possible criminal sanctions. This area also covers the conduct of judges and magistrates when setting bail. It makes it an offence to require excessive and unreasonable bail where the requirement represents an abuse of their office or where the judge or magistrate has a personal interest in the matter. Also covered are offences relating to witnesses and evidence. Offences include perverting the course of justice, giving of false testimony, deceiving witnesses and aiding a prisoner to escape from custody.

This bill proposes to alter the Director of Public Prosecutions Act 1983 by allowing delegation of powers and functions. This matter was previously unclear and clarification of this was certainly needed. This bill will not only clarify the power of the DPP to delegate but also make it possible for them to undertake a function despite previously having delegated that function to someone else. Under the proposed legislation, immunity against civil proceedings will be granted to the DPP and staff as well as to the Australian Government Solicitor while carrying out their duties. This provision covers both acts and omissions, but they must be carried out in good faith and in the course of duty to warrant immunity. These amendments will ensure that there is a single prosecuting authority involved in the prosecution of all charges and that more effective use is made of court resources. The duplication of resources has been an ongoing problem with our federal system of government. It is therefore important that we streamline the functions and powers of the DPP Act and processes.

Alcohol and drug-testing processes will be simplified under the Australian Federal Police Act 1979. The amendments will allow for the timely testing of AFP employees, thus ensuring that they are not under the influence while carrying out their duties.

Money laundering is a significant problem in Australia. It is estimated that $4.5 billion is laundered in Australia every year. The Anti-Money Laundering and Counter-Terrorism Financing Act 2006 established the framework for AUSTRAC—the Australian Transaction Reports and Analysis Centre. This bill will establish a more consistent approach on the disclosure of sensitive information gathered by AUSTRAC, which has a sophisticated process able to track the flow of international funds. This information should not be revealed in a way which may compromise potential prosecutions. Under this bill, changes to the Anti-Money Laundering and Counter-Terrorism Financing Act will see people involved in cross-border transfers of currency and international fund transfers obligated to report any suspicions.

One aspect of the bill that I would particularly like to comment on is the provision to assist victims of identity crime. People can have huge debts run up on their credit cards before they realise they are missing. Their signatures can be faked or their names used for Centrelink or medical purposes. What happens to these people when they realise their credit card has not only been lost but has also paid for thousands of dollars worth of goods or a holiday or they find out someone has already applied for a passport with their details? It is bad enough to have a crime committed against you, but for the proceeds of that crime to then be involved in further crime is a complete travesty.

People will now be able to apply to a magistrate for a certificate which, if granted, will help the individual in their dealings with financial institutions when trying to get their credit rating reinstated. In order to get a certificate, the person will have to provide enough quality information to prove to the magistrate that on the balance of probabilities the identity offence has been committed. As we are all aware, it is much easier to establish that on the balance of probabilities an offence has been committed than to prove beyond reasonable doubt that it has been committed. This will mean that a certificate can be issued without having to secure a conviction of a person for using your identity. The certificate will need to have the individual’s personal details as well as the nature of the offence committed. Even in a case where the identity of the offender has been established, it is not a requirement to include the name of that person. With the certificate in hand, the person will be able to negotiate with the finance company to get the loan they want or to simply have their previously good credit rating restored. They will not have to wait for the sometimes lengthy court process to take place to get a conviction or, if the perpetrator is never found, they will still have the assistance to help with the difficulties the fraud has created. Under section 375.3, a certificate must not be issued if it is likely to influence a court case. This is vital to ensure that court proceedings are protected and that no person loses their right to a fair trial.

Another benefit of this bill is that prison sentences of up to 10 years can be imposed for some offences. The tough sentences implemented in this bill should act as a deterrent to people against committing the crime of invading another person’s privacy by assuming their identity. After all, as I have said, our identity is vital to our existence and it needs to be protected.

As parliamentarians we have an obligation to ensure that the Australian public is protected from crime as much as it possibly can be. We have an obligation to ensure that penalties imposed for offences are effective deterrents. Passing this bill is one way that we can meet those obligations. The Gillard government is serious about cleaning up on crime and will continue to work to do so. I commend the bill to the Senate.